Contributory negligence was, historically, a harsh
doctrine, holding that a plaintiff would be barred any recovery if he was the
slightest bit negligent. Thus a person one percent at fault could be denied
recovery against a party whose negligence was 99 percent to blame for the
injury.

Michigan, like most other states, has now replaced
contributory negligence with comparative negligence.
[65] Under the latter
doctrine, the plaintiff’s recovery is reduced only by that percentage of the
accident cased by his own negligence. As a practical matter, this change
clearly increases corporate liability and, therefore, insurance rates. However,
it would not seem to have any effect on the broader insurance functions of
accepting and determining risks, and it is hard to argue with this change from a
standpoint of justice.

Unfortunately, this clear expansion of liability is
exacerbated by the refusal of the legislature to extend the same concept of
proportional liability to defendants under joint and several liability.
Plaintiffs are no longer precluded, by their own negligence, from collecting
damages for that part of the accident for which the defendants are at fault.
They are expected to bear only that portion of the loss caused by their
negligence. Defendants, however, operating under joint and several liability,
must still pick up the cost of damages caused by other defendants unable to pay
their share. Thus comparative negligence, without a corresponding shift on the
defendant’s side, hit defendants from both sides, further pushing up liability
costs.